Breeden v. State

Decision Date10 April 2014
Docket NumberNo. CR–13–984.,CR–13–984.
PartiesJackie BREEDEN, Jr., Appellant v. STATE of Arkansas, Appellee.
CourtArkansas Supreme Court

OPINION TEXT STARTS HERE

Jackie Breeden, Jr., pro se appellant.

Dustin McDaniel, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., for appellee.

PER CURIAM.

In 2011, appellant Jackie Breeden, Jr., was found guilty by a jury of one count of rape of his biological daughter, a minor, and a sentence of life imprisonment was imposed. This court affirmed. Breeden v. State, 2013 Ark. 145, 427 S.W.3d 5.

Subsequently, appellant timely filed in the trial court a verified, pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). The trial court denied the petition without a hearing. 1 Appellant lodged an appeal of that order in this court. Both appellant and the State have filed timely briefs. Now before us is appellant's motion to provide a certified record in which he requests a copy of the “trial transcript and docket entry records.” As it is clear from the record and the filed briefs that appellant could not prevail if the appeal were permitted to go forward, the order is affirmed, and the motion is moot.

In his petition, appellant alleged that he was entitled to relief based on ineffective assistance of counsel and related trial errors.2 This court has held that it will reverse the trial court's decision grantingor denying postconviction relief only when that decision is clearly erroneous. Johnson v. State, 2014 Ark. 74, 2014 WL 688981; Pankau v. State, 2013 Ark. 162, 2013 WL 1694909. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694.

When considering an appeal from a trial court's denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel's performance was not ineffective. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29.

The benchmark for judging a claim of ineffective assistance of counsel must be “whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). There is a strong presumption that trial counsel's conduct falls within the wide range of professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel's perspective at the time of the trial, could not have been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam). Second, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner must show that there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in sentencing. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. [T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

On appeal, appellant first makes a number of claims for relief stemming from his allegation that he was removed from the courtroom during the testimony of his former wife, Paula Breeden, who testified on behalf of the State in both the guilt and sentencing phases of the trial. Appellant contends that his alleged removal from the courtroom constituted fundamental error, a denial of his right to due process and a fair trial, and a denial of his right to confront witnesses. He also seems to contend that counsel's failure to object to his alleged removal amounted to ineffective assistance and that prosecutorial misconduct occurred to the extent that the prosecuting attorney directed his removal.3 To the extent that appellant's claims are cognizable under the Rule, there is no factual substantiation for the underlying allegation as the trial record does not support his claim that he was not present in the courtroom during the testimony of his former wife. During Ms. Breeden's testimony during the guilt phase of the trial, she was asked to identify appellant, and she pointed him out in the courtroom. Then, prior to reading the jury's verdict, the trial court stated for the record that appellant was present in the courtroom. Immediately after the guilty verdict was announced, the trial court proceeded with the sentencing phase of the trial and the State called Ms. Breeden as its first witness. Because the trial record does not support appellant's allegations, his argument must fail.

In his second argument on appeal, appellant contends that he “listed and requested several witnesses to offer exculpatory evidence and was denied.” He then refers to his “children[,] who could not have been totally ignorant of claimed activity of taking place over seven years.” Appellant attached to his petition a handwritten note signed by his father, Jackie Breeden, Sr., that stated that if appellant's father had been called to testify during the guilt phase of the trial, he would have testified that appellant's mother spent time taking care of appellant's children. On appeal, however, appellant only references “witnesses” and does not specifically refer to any error based on his father not being called as a witness.

To the extent that appellant has made the argument on appeal that counsel provided ineffective assistance based on the decision not to call as witnesses appellant's father or his children, who are the younger siblings of the victim, this claim is without merit. The objective in reviewing an assertion of ineffective assistance of counsel concerning the failure to call a certain witness is to determine whether the failure resulted in actual prejudice that denied the petitioner a fair trial. Moten v. State, 2013 Ark. 503, 2013 WL 6327549 (per curiam); Greer v. State, 2012 Ark. 158, 2012 WL 1223760 (per curiam) (citing Woody v. State, 2009 Ark. 413, 2009 WL 2971758 (per curiam)). When a petitioner alleges ineffective assistance of counsel concerning the failure to call witnesses, it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Boatright v. State, 2014 Ark. 66, 2014 WL 585976 (per curiam). The decision to call or not to call a particular witness is largely a matter of professional judgment. Adams v. State, 2013 Ark. 174, 427 S.W.3d 63. The fact that there was a witness or witnesses who could have offered beneficial testimony is not, in itself, proof of counsel's ineffectiveness. Id. (citing Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000)). In order to demonstrate prejudice, appellant must establish that there was a reasonable probability that, had counsel performed further investigation and presented the witness, the outcome of the trial would have been different. Greer, 2012 Ark. 158.

Here, appellant's argument presumably rests on the contention that witnesses could have provided evidence that individuals living in the home did not observe any suspicious activity evidencing the rape of his daughter for which he was convicted. However, appellant fails to substantiate his conclusory claim or offer any facts from which it could be said that counsel's decision not to call as witnesses appellant's younger children or his father was anything more than an exercise of professional judgment. Moreover, the failure to call witnesses whose testimony would be cumulative to testimony already presented does not deprive the defense of vital evidence. Moten, 2013 Ark. 503. The testimony that would have been provided by appellant's father, according to the handwritten note, was presented through the testimony of appellant's mother. She testified that, during the last several years in which she was living with her son and his family in their three-bedroom trailer, she spent a lot of time taking care of the children and had not seen anything “untoward” between appellant and his oldest child.

In his third point on appeal, appellant argues that his attorney was remiss in not moving to suppress his confession on the basis that he was not read his Miranda warnings prior to...

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  • Stewart v. State
    • United States
    • Arkansas Supreme Court
    • 9 Octubre 2014
    ...had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Breeden v. State, 2014 Ark. 159, 432 S.W.3d 618 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The la......
  • Sherman v. State
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    ...had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Breeden v. State, 2014 Ark. 159, 432 S.W.3d 618 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The la......
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    • Arkansas Supreme Court
    • 25 Septiembre 2014
    ...had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Breeden v. State, 2014 Ark. 159, 432 S.W.3d 618 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The la......
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    ...materials that would have been uncovered with further investigation could have changed the outcome of trial. See Breeden v. State, 2014 Ark. 159, 432 S.W.3d 618 (per curiam). The burden is entirely on the claimant to provide facts that affirmatively support his claims of prejudice, as neith......
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